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June 5, 2019

Waivers of Liability in Ontario: A Legal Primer

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Wray v. Pereira, 2019 ONSC 3354 (CanLII), <http://canlii.ca/t/j0rm6 

[2]               At trial, the plaintiff submitted to the jury that the general damages should be assessed in the area of $150,000 to $200,000, while the defendants suggested to the jury that the general damages should be assessed at $20,000. The plaintiff also claimed past out of pocket expenses of $7,278.52, future care costs in the sum of $5,103.44, as well as some recurring future care costs estimated at $3,492.14 annually. In their verdict, the jury found the defendants fully liable for the plaintiff’s injuries. The jury awarded general damages in the sum of $22,000. It awarded $2,000 for past out of pocket expenses and zero for future care costs. Following the trial, the defendants brought a threshold motion. The defence was successful on the threshold motion. After taking into account the statutory deductible, the plaintiff’s recovery at trial was $2,000.

Factors Relating to Costs

[7]               Rule 57.01 sets out the criteria which a court should consider in awarding costs. The particular factors which appear to be the most relevant in this case are as follows:

1.        The results of the proceeding;

2.        Any offer to settle made in the action;

3.        The principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs, as well as the rates charged and the hours spent by the lawyer;

4.        The amount of costs that the unsuccessful party could reasonably expect to pay;

5.        The amount claimed and the amount recovered in the proceeding;

6.        The apportionment of liability;

7.        The complexity of the proceeding;

8.        The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

9.        Whether any step in the proceeding was improper, vexatious or unnecessary, or taken through negligence, a mistake, or excessive caution.

[11]           In my view, the issue of success in the action should take into account the parties positions prior to trial. In this case, the plaintiff made no offer to settle prior to trial, not even a dismissal of the action on a without costs basis. The plaintiff made a Rule 49 offer to settle for the sum of $75,000 plus pre-judgment interest and costs shortly before the commencement of trial. Clearly, the cost consequences under Rule 49.10 have no application since the plaintiff’s offer was nowhere close to the result at trial. However, I view the plaintiff’s offer as a sincere effort to try and resolve the action, whereas the defendant left the plaintiff in a situation where he either had to abandon his claim entirely and face a claim for costs, or alternatively take the case to trial. The defence argues that it was not playing “hardball” during the settlement discussions. At paragraph 41 of the cost submissions counsel states,

Further, it is untrue that the Defendants sought to play “hardball” however defined. As an officer of the Court, counsel for the Defendants unequivocally denies that this was the case. This matter was assessed in a bona fide manner, and the assessment was that the injuries would neither pierce the threshold nor exceed the deductible given that the Plaintiff continued to be physically active in a way that would put stress on his knee, including golfing 3 times a week. There was no wider policy or strategy involved. The Defendants’ assessment has been borne out by the jury verdict. [Emphasis in original]

[12]           While I do not take issue with the right of the defendants to try this case, I have concluded that there was in fact a “hardball” approach taken by the defence in this case. The defence left the plaintiff with no option to withdraw from the litigation gracefully. In deciding not to make any offer, the defence was setting a clear demarcation line or a “line in the sand” which can be used to identify success or failure in the action. In my view, the defence should have realized that even a small award would be considered a success for the plaintiff in these circumstances. I conclude that while the recovery in this case was extremely modest, the plaintiff achieved some success in the action which would justify an award of partial indemnity costs. This also takes into account that in addition to the issue of damages, the defence also was unsuccessful on the liability issues. The jury found the defendants 100% liable for the accident.

[25]           The trial in this action was hard fought and there were numerous objections and motions argued during the course of the trial. While success on the motions and objections was divided, there were some issues advanced by the defendants which had no merit and which lengthened the trial from its estimated length of two weeks. The trial date was initially set at the pre-trial by Justice Shaughnessy. The pre-trial was held on April 24, 2018. The trial was scheduled to be heard at the spring sittings, which commenced on May 14, 2018. The plaintiff initially objected to the case being put on the trial list at the pre-trial before Justice Shaughnessy. He subsequently brought a motion before Justice Edwards to adjourn the trial. His request for an adjournment was denied. He attended again before Justice Edwards with a further request for an adjournment, which also was denied. The request for an adjournment was once again brought up at the commencement of trial. Approximately half a day was spent dealing with the plaintiff’s request for an adjournment. In light of the three previous requests to adjourn the trial, which had all been denied, I have concluded that the further motion for an adjournment of the trial was excessive and unnecessary.

[26]           Another issue which took approximately a day of trial time, was dealing with the defence request to introduce surveillance evidence. The defence attempted to introduce surveillance evidence both for a substantive purpose and for purposes of impeachment. However, in my written reasons dated August 1, 2018, I concluded that there had been clear violations by the defence of their obligations to produce the video surveillance at a much earlier stage of the litigation. As a result of the defence conduct, there was the potential for significant prejudice to the plaintiff for failing to comply fully with their disclosure and production obligations. I ruled that the surveillance evidence could not be used for substantive purposes by the defence.

[27]           Further time was spent during the trial with the defence attempting to introduce the surveillance evidence for purposes of impeachment. However, I concluded that there was no basis for the introduction of this evidence based on the evidence of the plaintiff.

[28]           The court was also required to accommodate the attendance of the defence expert, Dr. Finkelstein, who was only available to attend during the third week of the trial. I agree with the plaintiff’s submissions that they made every attempt to streamline the trial. They did not call a care cost expert or actuary. They made concessions where possible in order to shorten the length of the trial. For example, they agreed not to pursue a ruling on the admissibility of a wedding video, which had been proposed to go in as an exhibit. They re-organized witnesses as required to keep the trial moving. The conduct of the defence, however, had the effect of lengthening the trial by several days. It also increased the plaintiff’s disbursements for professional witnesses who were kept waiting before being able to give their evidence. All of these factors favour a more generous assessment of costs in favour of the plaintiff.


[29]           As noted in the Boucher case, supra., the objective in assessing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding. In the present case, the plaintiff’s recovery is so small that the plaintiff’s proposed cost outline does not provide a reasonable basis for an award of costs. However, the defendants approach to a resolution of this case made it almost impossible to avoid a trial and their conduct at trial did increase by several days, the length of the trial. Taking into account all of the factors discussed above, I have concluded that a reasonable amount of partial indemnity costs in this case is $40,000 inclusive of HST and disbursements. This figure also takes into account that the defence was successful on the threshold motion. I therefore order that the defendants pay to the plaintiff his party-and-party costs fixed at $40,000 inclusive of HST and disbursements.

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